August 22, 2007

A friend told a story tonight at dinner about the local personal injury attorney, who adopts a folksy manner in court. Up against a mid-level insurance defense firm associate at trial, he showed up in court wearing boots and sitting at counsel table picking his teeth with a toothpick. While waiting for the jury to file in, he looked over at the defense attorney, a man about the age I am now, wearing a good suit and French silk socks with fancy elastic ribbings. "Hey, Greg," the P.I. guy said (it doesn't matter if the attorney's name was really Greg or not) "I'll pay you a hundred dollars if you take off those sissy socks right now and let me buy you a pair of boots like mine." "Greg" was very upset, and mentioned it to the judge, who of course did not care.

Greg got creamed.

An amusing story. It reminded me of a time back when I was an insurance defense lawyer, when I was "Greg." I didn't have a real good idea of what I was really doing, and while I was certainly learning some good tricks to play with paperwork and motion practice, in nearly three years of work at the insurance defense firm, I never once actually tried a case. The insurance companies always caved right before trial.

So then, I'm out on my own, a partner in what was then a three-attorney firm. I'm flying up to Sacramento every few weeks to take depositions as part of a case with a significant liability profile and a serious damage claim against my client. My defense theory had to ultimately come down to the plaintiff's injuries being caused by an injury he sustained before my client had hurt him, to mitigate the losses, and to prove up the damage case, I'm tooling around all over the place to depose every doctor and therapist the plaintiff had seen for the past five years.

One of those doctors had set up shop outside of Reno, Nevada, so that's where the depositions took place. The plaintiff's attorney was a real low-key guy, and he and I got along well. After the deposition, he was looking at a three-hour drive back to his home outside of Sacto and I was looking at a dull hotel room before my flight back the next day. He laconically offered to buy me a steak dinner.

That's when I had a "sissy socks" moment -- and I was fortunate that my adversary was letting me know that in a somewhat kinder, gentler way than poor "Greg" had been informed that "you are not prepared to fight this fight and I'm going to roll right over you." I understood, in a flash, that my client was buying that steak dinner, and the attorney was just advancing the money, and there was nothing I could do about it. Like "Greg," I had the option of stammering and protesting and panicking.

Instead, I accepted my adversary's invitation to dinner and we talked about skiing and restaurants and told each other war stories. He and I became kind of friends that evening, and I started to learn from him.

I learned to honestly assess my own abilities and that of my adversary.

I learned that the best people to teach you how to exceed your present abilities are your competitors.

I learned that the margin between confidence and cockiness is defined by competence and preparation.

I learned that a professional, friendly attitude gets better results than acting like a pissed-off fire-breathing dragon all the time.

I learned that humility generally produces more learning than disregard.

I learned that the best lawyers stack the deck in their favor before they ever file a document in court.

I learned that if I had picked a good strategy, working that strategy would eventually lead to good results, even in the face of a strong case on the other side.

I learned that the strength of the other side's case ought not to generate despair but rather should be taken as a learning opportunity.

I learned, after I got some really good testimony out of a witness who everyone had expected was going to be very much in the plaintiff's favor, that even the strongest case can be attacked in one way or another, and that even the best lawyers can get their cages rattled.

And most of all, the trial of this case taught me that for a jury, it's just plain not about the lawyers, it's about the clients and the facts. The best way for a lawyer to be in front of a jury is direct and plain-spoken.

If I'd been "Greg," I wouldn't have taken the attorney up on his offer of a free pair of boots. But I also wouldn't have let the remark rattle my cage. Because after this verdict, I now know that sort of thing wouldn't actually matter all that much anyway; what matters is that I confidently present the truth.

I think that this case turned out better for me than "Greg's" case did for him because I took a step back and learned, rather than panicking and losing my nerve. By being humble around an older, more experienced, and generally better lawyer, I got to be a better and more experienced lawyer myself.

It's kind of like playing a racquet sport, like tennis. If you're "C" player, you want to play someone who can bring a "B" game. It challenges you, makes you grow and try different things and improve your existing abilities. After a while, your "C" turns in to a "B," and you need to find a player who can bring an "A" game.

Up in Sacramento, I was up against a guy who brought an "A" game, and because of it, I got to be a better lawyer myself. And I didn't have to give up any of my good socks to learn how.

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One wife, two dogs, two cats. Childless by choice.
Attorney (licensed in California and formerly in Tennessee). Aspirations to the bench.
Likes: professional football, cooking, good wine, bad science fiction movies, long walks on the beach.
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